BVA9500080
DOCKET NO. 93-04 904 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUES
1. Entitlement to an increased (compensable) rating for varicose
veins of the left leg.
2. Entitlement to a permanent and total disability rating for
nonservice-connected pension purposes.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the
United States
ATTORNEY FOR THE BOARD
John R. Pagano, Counsel
REMAND
The veteran had active military service from March 1969 to March
1973, and from October 1975 to October 1977.
As a preliminary matter, the Board of Veterans' Appeals (Board)
observes that, at the very least, the veteran has submitted a
well-grounded claim regarding potential entitlement to
nonservice-connected disability pension benefits. As such, the
Department of Veterans Affairs (VA) has a duty to assist him in
the development of this claim. See 38 U.S.C.A. § 5107(a) (West
1991). This duty has not yet been met for the reasons that
follow.
The United States Court of Veterans Appeals (Court) has rendered
several opinions which affect the development and analysis of
claims for permanent and total disability ratings for nonservice-
connected pension purposes. In Talley v. Derwinski,
2 Vet.App. 282 (1992), the Court explained that pension cases
must be adjudicated by applying both an objective and subjective
standard, and that the adjudicatory body must be clear as to
which standard is applied. Id. at 286-7; see also Brown v.
Derwinski, 2 Vet.App. 444, 446-7 (1992). Such an approach was
not undertaken by the regional office (RO) in this case.
Additionally, the Court has held that VA must evaluate each of
the veteran's disabilities pursuant to the VA's Schedule for
Rating Disabilities, 38 C.F.R. Part 4 (1993), and that a
percentage of impairment must be assigned for each disability
observed. See Roberts v. Derwinski, 2 Vet.App. 387, 389 (1992).
The RO has the responsibility of identifying all disorders which
the veteran currently has, determining whether each is permanent
in nature, and assigning a schedular evaluation for each. As the
veteran's representative noted in its June 1993 written
arguments, the rating decisions rendered by the RO in conjunction
with the current claim do not conform to these requirements.
The veteran has been diagnosed as suffering from rheumatoid
arthritis on a number of occasions, the most recent of which was
during a VA medical examination conducted in April 1992.
Physical examination of the veteran's major and minor joints
indicated that limitation of motion affected at least some parts
of the veteran's
musculoskeletal system. Under the provisions of 38 C.F.R.
§ 4.71(a), Diagnostic Code 5002, limitation of motion of the
specific joint or joints affected by chronic residuals of
rheumatoid arthritis are to be rated separately unless an active
disease process exists that would warrant a higher evaluation..
Despite this, the rating decisions rendered in conjunction with
the veteran's current claim simply carried forward the 20 percent
rating assigned in July 1984 for rheumatoid arthritis of multiple
joints. Such a practice is proscribed. See 38 C.F.R. § 4.25(b)
(1993).
In view of the foregoing, the Board's disposition of the issues
on appeal is deferred, and this case is REMANDED to the RO for
the following:
1. The RO should assess the severity of
each of the veteran's disabilities. To
this end, the veteran should be afforded
further VA examination, if necessary. Each
disability should be separately evaluated,
and any tests or studies deemed necessary
by the examiner(s) should be conducted.
2. In adjudicating the veteran's claim of
entitlement to VA pension benefits, the RO
should then apply the two-pronged test
espoused in Talley and Brown; i.e., (1)
does the veteran's disabilities, coupled
with his personal work experience and
training, render him unemployable, and, if
not, (2) does the veteran suffer from a
lifetime disability or disabilities which
would render it impossible for the average
person to follow a substantially gainful
occupation?
3. If the benefits sought on appeal are
not granted, both the veteran and his
representative should be furnished a
supplemental statement of the case, and
afforded the applicable time period in
which to respond.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further consideration. The
veteran need take no action unless so informed. The purpose of
this REMAND is to afford the appellant due process of law. No
inference should be drawn regarding the final disposition of the
claims.
JACQUELINE E. MONROE
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1993).